Banging your head against a brick wall

That’s what litigation can often feel like it, especially if (and who doesn’t?) you think your cause is just.

David Russell is the organist of St Mary’s Cathedral in Sydney. He was unfairly dismissed by the Roman Catholic Church from his position on the basis of complaints made about events long ago involving an employee of the church who had been staying in his home and in particular a claim that he had condoned sexual abuse on choirboys committed there by this man. Russell was reinstated by order of the Industrial Commission of NSW. He sought various expenses including legal costs from the church as a result of the manner in which the complaints were investigated and of his dismissal. Justice Rothman held that the church had breached its contract but that Mr Russell could not get any damages for this. I have written before about this case.

On Monday, David Russell had his appeal from the decision of Justice Rothman dismissed by the NSW Court of Appeal. There is a good chance he will seek to take it further and appeal to the High Court – by now he has almost nothing to lose in doing so.

In the one case where I have been to the High Court, my client only prevailed before 3 of the 9 judges who heard its case. My client still won, because those 3 made up the 3-2 majority in its favour at the High Court. You need to have a lot of patience and deep pockets or indulgent legal representatitves to wait as long as that.

In the meantime, I appeared recently in a matter where, after a protracted hold-out which itself has formed part of a trench-warfare defence, the defendants finally consented to an amendment of my client’s claim just after noon before a 2pm hearing which had been fixed to decide the specific question of whether the amendment should be allowed in the face of their previous refusal to consent to it. The defendants should and could have consented long ago, without the necessity of bringing the application to a hearing. But do you think that my client got costs of the extra expense the client was put to? Fat chance. From the registrar’s perspective, little court time had been wasted, and time was even saved by the defendants’ consent, albeit belated. The order was costs in the cause. That means that costs will be payable by the ultimate winner to the ultimate loser. At this stage, the defendants are unlikely to even put on any evidence until more than 2 years after the commencement of the proceedings, and the trial, of course, will be some time after that.

That’s a long wait. Fortunately, my client remains patiently confident of ultimate victory, so probably won’t take that as badly as I have.

Sometimes, it is the court which (urged usually by one of the parties) runs out of patience. Such cases are a curious comfort to others who, encountering delay, can at least reassure themselves that things are not going so badly for them. In his recently published reasons in the case of Grizonic v Suttor, Justice Brereton finally gave up. The proceedings (commenced in 2003) included a claim to the taking of accounts between the parties – that is, a reckoning of what was owed by whom to whom following the dissolution of a partnership. By now, it appeared that the plaintiff, Mr Grizonix, had no assets. Unsurprisingly, the defendant was no longer interested in pursuing the case for taking accounts. Mr Grizonic, by now self-represented, wanted to press ahead.

Justice Brereton observed that, amongst other things:

the proceedings had been before the Court more than 110 times;

a final hearing (ie a trial date) had been appointed three times;

a the first hearing, the matter was not ready for hearing on either side, but on the second time and now the third time Mr Grizonic sought to vacate the hearing again;

even when the court tried to break down the issues so that Mr Grizonic could deal with them one by one, Mr Grizonic was not prepared to co-operate in such a process;

Mr Grizonic was destitute, and Ms Suttor’s means modest;

even if Mr Grizonic was successful, any proceeds would probably be swallowed up by personal insolvency arrangements he had entered into – especially as proceedings brought against a firm of solicitors (who might have been deep pockets) were no longer on foot;

the protraction of the proceedings would involve costs disproportionate to what was in issue, including the use of court resources; and

the usual remedies to ensure that Mr Grizonic complied with court orders (basically, costs orders against him) were likely to be useless owing to his financial position.

Accordingly he ruled that the taking of accounts was a matter which ought not be permitted to proceed any further. He ordered that it be “permanently stayed.”

Even this did not finally dispose of everything. There were still funds paid into court (a procedure which is sometimes adopted when there is dispute over monies and these monies are therefore paid to the court to prevent either side making off with them) and a question of whether Mr Grizonic needed to pay an occupation fee for having occupied a property (this was presumably claimed by Ms Suttor at least to be partnership property). So the parties can still have a fight about this if they have the stamina.

I don’t know if it is possible to design a system which offers people a chance to vindicate themselves which is also proof against people taking advantage of that system. For every person vindicating their rights there is usually an opponent who sees it otherwise. The problem is that the process can be and is prolonged because it must be undertaken without prejudging the outcome.